Quote:
Originally Posted by Kali Yuga
OK, again....
1) The Constitution says nothing about public domain, its structure or any limitations.
2) The ruling points out how Congress can restore copyrights on material that is in public domain. The limitation is that it can't result in perpetual copyrights.
3) Yet again, §514 of the URAA was designed to mitigate claims based on the Takings Clause. That was the point of the footnote you cited.
4) The Takings Clause was not discussed at all in Eldred and barely in Golan. Again, if your position was viewed as a likely option, at a minimum it's not a part of the petition or dissent in either of those cases.
By the way, you kind of have the Takings Clause a bit backward. The literal text says "nor shall private property be taken for public use, without just compensation." (emphasis added) This was only recently (and controversially) extended to include the seizure of private property for private use that allegedly serves a public good. I'm not aware of any indication that the government cannot "seize" a public resource and privatize it, at least not based on the Takings Clause. I mean, is the government supposed to compensate the government for selling a slice of land it owns? 
(Note: this doesn't seem to be part of the reasoning in this ruling; again, the ruling just says "§514 is sufficient to satisfy concerns in the Takings Clause." I presume all parties roughly agree with the SCOTUS' evaluation.)
The Atlas Shrugged example does not apply, because it would involve removing Constitutionally protected ownership from the copyright holders (presumably Ayn Rand's estate). The lake seizure is also not applicable, because the state is acquiring property from an actual owner via eminent domain.
Congress is not seizing property that you own, precisely because no one owns it any more. The public doesn't receive royalty payments on PD works; the public can't assign the right to distribute a public domain work to a specific organization; the public can't block or grant the right to make a work derivative of a PD work. Neither the Constitution nor Copyright Law stipulate that a work in "public domain" has had its ownership transferred; all it says is that "after x years, copyright expires, and the copyright holder loses all the protections."
Further, part of the idea is that these works should have been protected all along, and was not because the US was not upholding its obligations to Berne. It's not that the works were once protected, and new protection was imposed; it's more like the government recognizing it had a responsibility all along to offer copyright protection. I.e. the SCOTUS is saying that with URAA/CTEA, Congress restored the copyrights to the proper owners.
Now, Congress could accept your argument, and rewrite copyright laws such that a work cannot be removed from the public domain once it's entered, or that when a work enters public domain, ownership is in fact transferred. But those kinds of decisions lie with Congress, because the Constitution makes no such provisions. |
But it
is seizing property... that's clear. Your argument is that it is unclaimed property, therefore no one has standing to claim damages. Yet they have lost access for free, which they already had. Is access a property? It's definable, it's measurable, but it is intangible. It also has value. It would be up to court to decide, not Congress.
Congress can pass any law it wants. It's doesn't mean that the SOTUS can't find it unconstitutional and therefore void, or that it is subject to other restrictions. (I'm speaking generically).
This issue has never been put before a court, so it hasn't been settled.
The real legal question is - does anybody have standing to claim damages. That's a win quick/lose quick issue. If they do - the rest will follow automatically. If they don't it ends quick. But there is no reason not to try.
As to why it hasn't been put before a court, that's easy. the Plaintiffs sought to block the reversion. This legal line would not block the reversion. It's only purpose woudl be to force Congress to factor in the public cost for copyright changes. As value is clearly being transferred, this is not unreasonable.
(Note, both in the
Golan decision and the oral arguments for
Ashcroft, this issue was hinted at by the members of SOTUS. I suspect it's not as dead-letter as you keep trying to force it into.)
As to you claim "§514 is sufficient to satisfy concerns in the Takings Clause." Here is what the ruling said (I just went over it and extract all Taking claim mentions.)
1.
Concerns about §514’s compatibility with the Fifth Amendment’s Takings Clause led Congress to include additional protections for“reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See §104A(h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce—either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. §104A(c), (d)(2)(A)(i), and (B)(i). After that, reli*ance parties may continue to exploit existing copies for a grace period of one year. §104A(d)(2)(A)(ii), and (B)(ii).Finally, anyone who, before the URAA’s enactment, creat*ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. §104A(d)(3).
2. (as quoted before)
If Congress could grant protection to these works without hazarding heightened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 ——————
33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the public. See URAA Joint Hearing 3 (statement of Rep. Hughes); id., at 121 (app. to statement of Lehman, Commerce Dept.); id., at 141 (statement of Shapiro, USTR); id., at 145 (statement of Christopher Schroeder, DOJ).
The reliance-party protections supplied by §514, see supra,at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder)."
Neither of those portions of the ruling states or implied
The Court found those to be "sufficient to satisfy concerns in the Takings Clause", only that
Congress meant them to satisfy concerns. There are no others. The Court has made no ruling on the matter, overt or implied.